March 23, 2007

Secretary of Defense Gates wanted to move the Guantanamo detainees to the United States, and Condoleezza Rice agreed with him, according to this NYT article, which connects this story to the ongoing controversy over firing several U.S. Attorneys. The link between the two stories is Alberto Gonzales:

Mr. Gates’s arguments were rejected after Attorney General Alberto R. Gonzales and some other government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the office of Vice President Dick Cheney, administration officials said....

[O]ne senior administration official who favors the closing of the facility said the battle might be renewed.

“Let’s see what happens to Gonzales,” that official said, referring to speculation that Mr. Gonzales will be forced to step down, or at least is significantly weakened, because of the political uproar over the dismissal of United States attorneys. “I suspect this one isn’t over yet.”

Details of the internal discussions on Guantánamo were described by senior officials from three departments or agencies of the executive branch, including officials who support moving rapidly to close Guantánamo and those who do not. One official made it clear that he was willing to discuss the internal deliberations in part because of Mr. Gonzales’s current political weakness. The senior officials discussed the issue on ground rules of anonymity because it entailed confidential conversations.

So someone has made the decision to ramp up the pressure on Gonzales by leaking these private deliberations. Someone sees an opportunity to take down Gonzales and is going for it.

Here's the reason not to move the detainees to the United States:

Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights — and invite an explosion of civil litigation. Guantánamo was chosen because it was an American military facility but not on American soil.

I wonder why this isn't persuasive to Gates and Rice. But since this wasn't a public debate, everyone who participated in it is disserved. One person has decided to leak on his terms, with his slant on the subject.

89 comments:

Of course the AG and the management at the DoJ, as well as DoD, don't want to move illegal combatants mostly caught on the battlefield, to U.S. soil where in the years since we last had POWs here, the courts have greatly increased the protection of aliens, even illegal ones, within our country.

I just call that prudent lawyering. The AG may not be too politically bright, but he still has my respect as an attorney.

This is isn't persuasive to Gates and Rice (nor should be persuasive) because even if one believes that prisoners at Guantanamo should have fewer rights than courts are likely to accord them (a proposition with which I disagree), the damage to US reputation from keeping Guantanamo is far greater. Plus, the Supreme Court made it clear that prisoners at Guantanamo are not in a legal black hole in 2004, and (I think and hope) will make it clear again, despite the last year's Military Commissions Act.

One more reason for Gonzales to go; the man is wrong on virtually everything.

The constant carping about Guantanamo detainees from the American/European apologists is pathetic. The detainees will say and do anything to get released so they can return to the urban battlefield.

Illegals from Mexico are killing innocent Americans with impunity as immigration laws are not enforced. The only conclusion to be drawn is innocent Americans caught in the crossfire have no rights when attacked by a targeted voting block or psychotic jihadists whose professed goal is to destroy our culture with maximum collateral damage.

Now we have leaks in the administration and intelligence community pursuing an alternate foreign policy. Makes any sentient being wonder who is running this country: the ACLU, CAIR, the Democrats with no platform, or the elected Bush.

Intentionally weakening any administration in time of war is aiding and abetting those aligned against our country. The American electorate will see through this conspiracy to weaken in pursuit of power for power's sake.

The desperation of the democrats is apparent. I hope the Bush Administration calls their bluff, doubles down and shows that the democrats are holding nothing.

Tongue in cheek I propose moving the Gitmo guys to the Presidio of San Francisco. They obviously are not dangerous after all. We can run a half-way house. Let all those boys see what life is like in the big city. I'm sure after a few day trips into the Castro or Haight, they'll come to appreciate our multicultural society.

Nancy's base doesn't want the DoD in her district, or recruiters but I'm sure they'd make an exception for this worthy goal.

Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights — and invite an explosion of civil litigation. Guantánamo was chosen because it was an American military facility but not on American soil.

You really hate the Constitution and the Bill of Rights, don't you?

Everyone, including Bush agrees that Guantanamo does us damage and should be closed.

Watch how Pretzeldent Petulant McPissyPants moves the discussion of closing Guantanamo from agreement that it does us damage to his claim that even the discussion itself maligns our soldiers.

I'd like to close Guantanamo, but I also recognize that we're holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle -- in my judgment, handle these types of people is through our military courts. And that's why we're waiting on the Supreme Court to make a decision.

Part of closing Guantanamo is to send some folks back home, like we've been doing. And the State Department is in the process of encouraging countries to take the folks back. Of course, sometimes we get criticized for sending some people out of Guantanamo back to their home country because of the nature of the home country. It's a little bit of a Catch-22. But we're working through this.

No question, Guantanamo sends a signal to some of our friends -- provides an excuse, for example, to say the United States is not upholding the values that they're trying to encourage other countries to adhere to. And my answer to them is, is that we are a nation of laws and rule of law. These people have been picked up off the battlefield and they're very dangerous. And so we have that balance between customary justice, the typical system, and one that will be done in the military courts. And that's what we're waiting for.

Eventually, these people will have trials, and they will have counsel and they will be represented in a court of law. I say, "these people," those who are not sent back to their mother countries. You know, we've sent a lot of people home already. I don't think the American people know that, nor do the citizens of some of the countries that are concerned about Guantanamo.

You mentioned Abu Ghraib. No question, it's set a terrible example. I was asked at a press conference in the East Room with Tony Blair, mistakes. Abu Ghraib was a terrible mistake. I was asked that question, by the way, about Abu -- very same question you asked by a member of the Iraqi cabinet. And I told her, I said that where there's allegations, we will investigate. And I reminded her that ours is a transparent society where people will see and follow these investigations, and people will be held to account according to our laws.

But I also want the people to understand here and around the world that 99.9 percent of our troops are honorable, decent people who are serving our country under difficult conditions, and I'm proud of them. I'm proud of the United States military. And that's a message our military and their families must consistently hear, that they're doing fine work. I understand the politics and all that. But I'm going to continue to remind them that, set politics aside, this nation owes you a debt of gratitude.

So we'll deal with these incidents, and we'll deal with them in an up-front way. But I'm not going to let these incidents stain the reputation of our military. They're good people. They really are.

Intentionally weakening any administration in time of war is aiding and abetting those aligned against our country.

The American electorate will see through this conspiracy to weaken in pursuit of power for power's sake."

David - I haven't seen such a series of cogent observations since..well gosh I just can't think of anyone I've ever read who came up with paragraphs like yours.

If the American Justic System is the prize to be defended..as part of our constitution, the world's model of fairness and social enlightenment, the proponent of rule of law and the constitution that we and all Americans would die to defend...that Court System David .. is that the one you fear having anything to do with Guantanamo?

Do you hate America so much that you no longer trust it? Is that your issue? You hate America?

Nancy's base doesn't want the DoD in her district, or recruiters but I'm sure they'd make an exception for this worthy goal.

That's just another smear. Back this up. As you know, California had the DoD removed from it by George Herbert Walker Bush and the "bipartisan", Republican controlled, Base Realignment and Closing Commission.

In the meantime as you point out, Northern California has a rich history of supporting the military and this country from the Presidio, to Alcatraz, to what is now the GGNRA, Travis, Mare Island where we built 512 ships and repaired hundreds more, to the San Francisco Naval Shipyard, to NAS Alameda where B-25s were loaded onto the Hornet ....

Silicon Valley, and the Intart00b is mainly a DoD spinoff.

What we celebrate in Northern California is Diversity in general, and diversity in thought in particular -- I know that just eats away at you, but that is a spinoff of having UC Berkeley, Stanford, UC San Francisco and a wonderful environment all in the same place.

(It's basically what sticks in Althouse's craw, that she has been stuck in a backwater for 25 years.)

Of course the AG and the management at the DoJ, as well as DoD, don't want to move illegal combatants mostly caught on the battlefield

Do you have any proof to back up this statement. Part of the inherent unfairness of the process that results in the detainees being called illegal combatants is that much of the evidence against them is classified. So no one except the Administration, not even the detainees, know the basis of the detention.

Here's the reason not to move the detainees to the United States:

When I read this, I was incredulous. So much so that I double checked the UW Law School website to make sure you really are a Law Professor there and that you actually do teach constitutional law. Amazingly, you do.

Now, I know you are afraid of big bad terrorists, so much so you were willing to vote for Bush in the deluded belief that he was actually doing a competent job in fighting terrorism. But to look at the denial of basic human and due process rights at Guantanamo, in secret prisons elsewhere, and even in the U.S. (i.e., Padilla), including torture (regardless of the administration's claims to the contrary) and not be appalled by the constitutional implications is beyond belief.

Someone sees an opportunity to take down Gonzales and is going for it.

I actually inferred something quite different. I thought that the leaker had a policy difference with the AG and was willing to exploit the AG's current political position in the hopes of getting the leaker's policy favored.

No, unlike you, I will not allow anti-Liberty adversaries to take advantage of it's provisions, provisions they would never extend to anyone, as a weapon to defeat me.

You do realize that the bill of rights and the constitution are meant to protect the rights of minorities and criminals? Furthermore, almost nobody is arguing for full constitutional protection for these detainees. We have adopted and codified certain international treaties regarding the treatment and due process rights of detainees (e.g., the Geneva Conventions and the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) that the Military Tribunals as established by the President and the treatment he has subjected some of them to just do not comply with.

When all this started, the military JAG corps suggested that the existing military justice system be used to try detainees. Instead he chose to use a system that is very similar to the one we used to try Japanese war criminals after WWII and was seen as fundamentally unfair (and actually led to the creation of the current UCMJ to address the problems). Likewise, rather than stick to the Army Field Manual for interrogation, the rulebook was shredded and more coercive techniques were allowed. This led to detainee deaths from torture and situations like Abu Gharaib. Who knows what happened in the secret CIA prisons set up in former KGB facilities in Eastern Europe.

Apparently some of you would resort to the tactics and morality of the Soviet Union to "win" this war. And you call me a communist.

Freder wrote: You do realize that the bill of rights and the constitution are meant to protect the rights of minorities and criminals?

No, that was the effort of liberals in the 60's & 70's, but we thwarted that effort, built more prison capacity and watched the crime rate decline. The Constitution is to protect free men from the use of the criminal justice system by the government to repress Liberty. Yet for those that were dreaming of Fitzmas, enjoyed his use of the criminal justice system to encroach upon the Constitutional rights of the Office of the Vice President. Today with the Congress to ignore the Constitution for show trials. The Cafeteria Constitutionalists strike again.

Look, it may be wrong for pornographers and gamblers to move offshore to circumvent our laws...but it ain't wrong when our federal government does it because they are doing everything in their power to protect us. The beauty of Guantanamo is that it is alot like Vegas-"What happens in Guantanamo stays in Guantanamo". Maybe we should just create a zone here in the U.S. where statutory and constitutional rights are suspended.

Of course.......I very much trust the folks at the very top of the federal government to protect our interests at all times. If our president and congress must suspend our statutory and constitutional rights to care for us, it would be unpatriotic to not take them at face value. I mean, our government has never lied to us, harmed or exploited its citizens, or broken any laws....unless it was in our best interests.

Sorry, the sarcasm was too subtle first time around. Some people who post regularly on this site would express such sentiments seriously, including apparently our host.

I will note the time and wait until Ann indignantly declares "I never said that detainees don't have some rights". But I will also bet you dollars to donuts that she will never say "detainees do have statutory rights under duly enacted treaties and the constitution."

Look.... I just came up with a solution to the Guantanamo problem that will save us money and restore our credibility, both at home and abroad. Let's just transfer the detainees to Building 18 at Walter Reed Hospital.

You do realize that the bill of rights and the constitution are meant to protect the rights of minorities and criminals?

criminals != POWs

Thats the mistake Clinton made.

Foreign nationals captured in Afgantistan do not have a right to purchase a handgun. Or freedom of speech. They aren't even American citizens. The are prisoners of war. If Americans are so ignorant that they would apply the BOR to foreign terrorists, then I don't blame the AG for wanting to keep them in Guatanamo.

We have adopted and codified certain international treaties regarding the treatment and due process rights of detainees (e.g., the Geneva Conventions and the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)

Treaties which are not observed by our enemy and which are also outdated. Geneva and the Law of War were designed to prevent the very people you would protect.

Treaties which are not observed by our enemy and which are also outdated. Geneva and the Law of War were designed to prevent the very people you would protect.

As a general rule of thumb, if someone else behaves immorally or illegally, I see it as permission to abandon my own principles and do whatever the heck I want. Not only have I been given permission to act out, I have an obligation to do it. Why, this is the very basis of our two party system and those ever poplar political cable talk shows we have all come to know and love.

Krauthammer's piece in The Washington Post this morning suggests Gonzales should go simply because his political imcompetence (namely turning a non-story into a scandal because he just didn't come out and make the case that the President can simply fire US Attrneys because he can). It seems this is the divide now:The left says, "this was too political"; the right says "this wasn't political enough".

My question is: Even if an employer has the right to fire an employee without reason, if a reason is given shouldn't that reason be truthful?

The administrations stated reasons for the firings was not, initially, presidential priviledge, but instead poor performance. This to me seems like something they should then have to demonstrate.

I agree! It would be an interesting social experiment dropping the jihadist psychos into the Bay area. I would fully expect the rallying cry to be "NIMBY" you don't.

The jihadists are actively working to undermine the foundations of our society upon which the governing institutions are built. The Dirty Harry movies from the 70's were prescient especially in it's portrayal of the SFPD and Alcatraz. The recent beating of the Choir group in S.F. is another case in point of the exploitation of our system of laws for political agenda.

I can imagine the pickets at San Quentin "Free the Jihadist Martyrs" complete with tee-shirts and pachouli samples and an army of ACLU/CAIR lawyers lined up to provide pro bono services financed by Soros.

What is comical is listening to these "useful idiots" claiming to support a judicial system they have hijacked for their 'religion' of moral relativity. The fallacy of their movement is it's fatal reliance on the "end justifying the means." The left has already hijacked free speech when it differs from their world view and then they want to talk about the erosion of the Constitution and the Bill of Rights.

Bring it on boys and girls! The conversation is just getting started. Show me what you got (sic)!

I have actually done the research and the math! The left, its politicians, pundits, and believers, have engaged in egregious conduct more intensely, more frequently, and for a longer duration than those on the right. It was alot of work collecting each and every mistake and piece of misconduct, hypocricy, misrepresentation, misinterpretation, supression of free speech, etc......over the years. However, I have conclusive and indisputable proof that those on the left are worse human beings than those on the right. I hope to be on Hannity and Colmes to present my findings.

At a deep, visceral level I am troubled that the administration sees the constitution as something to be circumvented and negated. At that same level I feel it would have been better to just shoot the detainees on the battlefield or keep them prisoner in Afghanistan to question using the means and methods of the Afghanis. In some ways that would have been less of a violation of our principles.

Gitmo is still sovereign Cuban territory. The laws of Cuba still apply under the lease agreement. Was Cuba chosen not solely because US law does not apply but also because it could be argued that the prisoners can be treated in the same manner that the Castro regime treats its prisoners?

Also, if the constitution does not apply on Cuban soil, by what authority does a military officer act when in Gitmo?

Bruce wrote:the courts have greatly increased the protection of aliens, even illegal ones, within our country.

Why is 'protection' under the legal system a bad thing? Are you saying anyone 'protected' by the court is somehow going to ultimately go free?

David wrote:Makes any sentient being wonder who is running this country:...the Democrats with no platform, or the elected Bush.

Isn't the point of the Constitution that both branches run the country? That they serve as a check upon each other?

Fritz wrote:Why is Club GITMO, the most luxurious detention facility on the planet an issue?

If "Club GITMO" is as you describe, can we expect it to be the destination for future white collar criminals? If Scooter Libby serves time, will he be pushing for a GITMO address?

Reality Check wrote:What we celebrate in Northern California is Diversity in general, and diversity in thought in particular

Doesn't 'diversity' in theory often lead to 'discrimination' in practice? (or in the particular realm of thought, the idea of 'hate speech'?)

Also, having lived in a variety of different places in North America- from Salt Lake City to San Francisco to Canada- I don't see Wisconsin as 'backwater'. There are good and decent people in every city, there are sad and pathetic people in every city. My suggestion would be to visit the 'backwater' of Wisconsin...seems to me that would be some 'diversity' in practice.

Fen writes:Treaties which are not observed by our enemy and which are also outdated. Geneva and the Law of War were designed to prevent the very people you would protect.

Laws are never observed by the criminal element...it doesn't mean we dismiss the laws does it? Even in moments when it is justifiable to take some action, isn't it for the Rule of Law to decide ultimately whether it was truly justifiable?

my apologies to reality check for trumping all arguments with a picture...you should try having your arguments and logic trumped by an 18-month old on a daily...it is humbling...and a little frightening. She's a cruel debater...

It's the exception that proves (tests & valdates) the rule. The BOR applies to everyone, exceptions are made through a duly rational process. And the question really is: "By what authority do agents of the United States act if not the authority of the constitution?"

ron and fen said...Fen writes:Treaties which are not observed by our enemy and which are also outdated. Geneva and the Law of War were designed to prevent the very people you would protect.

ron writes...Laws are never observed by the criminal element...it doesn't mean we dismiss the laws does it? Even in moments when it is justifiable to take some action, isn't it for the Rule of Law to decide ultimately whether it was truly justifiable?

I think the point Fen was making is the the GC and the Laws of Land Warfare attempt to encourage combatants to fight in a civilized manner and to separate themselves from the populace to avoid collateral damage to civilians and civilian targets. It creates a tiered set of treatment for folks bearing arms who are captured by the opposition based on whether their entity has signed the GC and whether they are complying with this rules of war. Loosely stated, if you don't sign and don't play by the rules, your people don't get treated as nicely when captured. This isn't a sanction applied by the US on its own, it is codified by the signatories and designed to encourage folks to play by the rules. When Al Qaeda, hides among the people, wears no uniforms, targets civilians with atrocities as its normal practice and takes no prisoners, that is not playing by the rules. The impact is not that we cut off GITMO heads, but you don't get mail privileges, etc...

Giving POW's full access to the US courts is not something ever done before and not expected under the GC.

I think the point Fen was making is the the GC and the Laws of Land Warfare attempt to encourage combatants to fight in a civilized manner and to separate themselves from the populace to avoid collateral damage to civilians and civilian targets. It creates a tiered set of treatment for folks bearing arms who are captured by the opposition based on whether their entity has signed the GC and whether they are complying with this rules of war. Loosely stated, if you don't sign and don't play by the rules, your people don't get treated as nicely when captured. This isn't a sanction applied by the US on its own, it is codified by the signatories and designed to encourage folks to play by the rules.

Yah, thanks Drill SGT. Thats exactly what I was getting at. The Law of War is meant to encourage combatants to abide by civilized rules, not protect those who don't.

drill sgt-I think you make completely reasonable points, and there *is* something to be said for the way in which the battlefield and the rules of engagement are a deeply murkier when dealing with such realities.My main concern, or problem, is part philisophical (the dilemma of being a moral being in the face of an immoral enemy, and somehow retaining the essence of what makes 'us' different from 'them'), and the more practical concerns of how to deal with such enemies once they are captured.It seems to me that once captured, and labeled prisoners of war, even if the enemy at hand is non-state actors who are not signatories to such treaties, we, as America, are beholden to provide the same level of basic rights we would extend to other POWs.If, however, we decide, and perhaps rightly, that since this is a different type of war, requiring a different type of treatment, we should at least make every effort to do so in as open a way as possible.Not for the prisoners themselves, not even for our enemies, but for those who would otherwise be on our side.

I understand your concerns, and I honestly believe they are well-meaning and sincere. I would only hope (and you have not acted otherwise, so thank you) that the rhetoric pointed at those who think more along the lines that I do would be cooled somewhat.

I'm a centrist, and as such I'm critical of the left for never seeing a military role in diplomacy, and critical of the right for never seeing that peace is ultimately a political solution.

It sort of makes me yearn for an Eisenhower, someone who could strike a balance between the proper roles for the two arms of foreign policy.

In the end, I see GITMO as more of a problem than a solution. But the debate is important.

The Bill of Rights does not apply to everyone in the world. Contrary to Hollywood celebrities, we are not the World! The attempt to apply certain inalienable rights, while fundamental to civilized nations, does not apply to those who choose to ignore those rights.

It is absurd and suicidal to demand that the same rights enjoyed by citizens of the U.S. be applied to those who do not recognize those same rights. Cuba is under the control of a Marxist dictator and, therefore, repudiates civilized law. The Cuban government has no standing and no rights. The base at Guantanamo cannot violate the sovereignty of a lawless nation. There is no moral equivalency.

I am waiting to hear the left's outrage regarding the recent abduction of 15 British sailors by Iran in the Shaat al Arab, southern Iraq. What a coincidence that it occurred just before the arrival of Ahmadinejad on U.S. soil for another performance of nutcase outrage inspired by the 12th Iman at the bottom of a mystic well.

Your ignorance of terrorist tactics is boundless. This is a publicity stunt in retaliation for the French aircraft carrier that joined the U.S. task force in the area. Iran thought they had the French wrapped up and delivered but Chirac hung them out to dry.

Perhaps my example was too complex for you. How about the two children that were blown up at a checkpoint in Iraq recently. Seems as how the terrorists pimped to kids to get the checkpoint guards to let them pass. The adults then jumped out and ran detonating the vehicle with the two kids still in it killing them and several others in the immediate vicinity.

Anyone person or group that would practice that horror, much less condone/celebrate it, is not worthy of any discussion involving the niceties of civilized law. This is an entirely different issue requiring an entirely seperate set of rules.

My main concern, or problem, is part philisophical (the dilemma of being a moral being in the face of an immoral enemy, and somehow retaining the essence of what makes 'us' different from 'them'), and the more practical concerns of how to deal with such enemies once they are captured. It seems to me that once captured, and labeled prisoners of war, even if the enemy at hand is non-state actors who are not signatories to such treaties, we, as America, are beholden to provide the same level of basic rights we would extend to other POWs.

Well, we're different in that regard. I believe that enemy troops making a good faith attempt to abide by the Laws of War should be treated humanely when captured.

And I distinguish them from terrorists who deliberately target innocents. They should be put down like rabid dogs.

I am waiting to hear the left's outrage regarding the recent abduction of 15 British sailors by Iran in the Shaat al Arab, southern Iraq.

Iran claims they were in Iranian territorial waters. If the claim is true, they were perfectly justified in detaining them. Would you be outraged if uniformed Iranian Sailors were detained in Iraqi Waters (even if Iran claimed they were in Iranian waters)? If the British sailors are mistreated, then I will be outraged. This will end in a couple days when the Brits are released unharmed after someone admits that a mistake was made.

Well, we're different in that regard. I believe that enemy troops making a good faith attempt to abide by the Laws of War should be treated humanely when captured.

And I distinguish them from terrorists who deliberately target innocents. They should be put down like rabid dogs.

The problem is that we don't put them down when we legally can partially for humanitarian reasons, and partly for intelligence gathering purposes. So, we end up with a bunch of prisoners whom we could have legally shot on sight at the time they were captured, but didn't. And what rules should then apply to them?

My view is that keeping them legally out of the U.S. keeps their court ordered due process, etc. rights at a level somewhat comensurate with their crimes and failure to abide by the Geneva Convention.

My view is that keeping them legally out of the U.S. keeps their court ordered due process, etc. rights at a level somewhat comensurate with their crimes and failure to abide by the Geneva Convention.

Agreed, esp considering that our Left wants Civil Rights for Foreign Terrorists, but sidestepping the courts by keeping them outside the US is still a dodge.

Human rights advocates should recognize they have an interest in reviewing and revising these laws [Geneva, etc]. They are not realistic by today's standards - next generation warfare will employ mercs by proxy to avoid all the "silly" legal issues, rendering Geneva et al moot.

The problem is that we don't put them down when we legally can partially for humanitarian reasons, and partly for intelligence gathering purposes. So, we end up with a bunch of prisoners whom we could have legally shot on sight at the time they were captured, but didn't. And what rules should then apply to them?

Neither U.S. Law (general civilian law or military law) nor international law allows the summary execution or even the inhumane treatment of anyone, even spies or terrorists. It hasn't for well over a hundred years. Everyone, no exceptions, is entitled to humane treatment, and some kind of due process once they surrender or to be treated as a prisoner of war.

It is a gross misstatement of the laws of war, and besmirches the reputation and morality of our military, to imply that anyone who is not a legal combatant can be summarily executed. In fact to do so is considered murder under the UCMJ.

The problem is that we don't put them down when we legally can partially for humanitarian reasons, and partly for intelligence gathering purposes. So, we end up with a bunch of prisoners whom we could have legally shot on sight at the time they were captured, but didn't. And what rules should then apply to them?

Only problem there is we would have shot and killed over 400 innocent prisoners that have been released from Gitmo. Some from countries like Britain, Australia to name a few. And now their countries and our allies are pissed. The remaining 350 that are there now only 12-15 so far are being charged with anything at all. It's quite amazing anyone would defend this madness - especially a constitutional law professor. I'm not trying to rag on Ann, but I just don't get it.

For one thing, the Shat al Arab is contested water at best, and the only one contesting it is Iran. The sailors were in Iraqi waters.

Your other point is well taken. I will say that I am outraged when uniformed Mexican's in uniform make incursions into the U.S., fire on our border personnel, then retreat back into Mexico. Worse yet, drunk illegals killing our citizens with impunity and/or joining gangs like the mara salvatrucha to organize drug gangs driving prostitution, drugs, slave trade, and smuggling across our borders.

Iran is a pariah state fighting a war of civilizations that dates from Xerxes fighting the Greek states in the eastern Mediterranean. I could care less what they think, especially in light of their stellar performance sacking our embassy and holding hostages for a year under Carter.

Neither U.S. Law (general civilian law or military law) nor international law allows the summary execution or even the inhumane treatment of anyone, even spies or terrorists.

Of course. But that doesn't preclude calling in cluster bombs when CS canisters would do just as well. Too many released prisoners are finding their way back onto the FEBA. The troops now understand that its in their best interest to use disproportionate force [when intel gathering is not a factor]. Reality trumps idealism.

But that doesn't preclude calling in cluster bombs when CS canisters would do just as well. Too many released prisoners are finding their way back onto the FEBA. The troops now understand that its in their best interest to use disproportionate force [when intel gathering is not a factor].

Actually it does. Cluster bombs kill a whole lot of innocent people when used in populated areas and keep on killing long after they drop. The use of disproportionate force is presumptively illegal.

This is isn't persuasive to Gates and Rice (nor should be persuasive) because even if one believes that prisoners at Guantanamo should have fewer rights than courts are likely to accord them (a proposition with which I disagree), the damage to US reputation from keeping Guantanamo is far greater.

Let's take the sentence "Keeping captured enemy troops prisoner at [Guantanamo] is [atrocious and unacceptable]", such as might be uttered by Human Rights Watch or anti-war protesters.

Your assumption is that the content of the second set of brackets is dependent on the first, and that we therefore could eliminate the criticism in the second set of brackets by selecting the right location for the first.

My view is that HRW and anti-war protesters start off with the sentence "Keeping captured enemy troops prisoner at ________ is atrocious and unacceptable" and simply fill in the blank with whatever location the enemy troops are being kept at. If we move the prisoners from Gitmo to Virginia the next communique from the causeheads will simply read "Keeping captured enemy troops prisoner in Virginia is atrocious and unacceptable".

So, in my view, closing Gitmo wins us nothing. Indeed, since it will be taken as a concession that keeping the prisoners in Gitmo was, in fact, wrong -- which in my view it plainly was not -- it will have a strongly negative effect on our position. It is never a good idea to admit guilt when you are in fact innocent of wrongdoing.

Fen said... Only problem there is we would have shot and killed over 400 innocent prisoners that have been released from Gitmo

BTW thats not accurate. We did not release 400 prisoners because they were found innocent.

uh -- you think this group of rabid dogs that we have in our government would let guilty men go? officials who are desperate to justify gitmo, you think they're releasing actual terrorists? remarkably stupid, even for this board.

Most POW's, historically, only committed the crime of fighting against the people they were at war with.

Reasonable people throughout history realized that POW's did not warrant any protections as they are only being held until hostilities end. They ARE NOT being held for criminal activities (I'm STUNNED the Left hasn't tried to claim that he lack of warrants for arrest indicate that they should be set free).

There are times when this kind of thing is needed. There are times when people who are in combat against us --- even if it can't be proven they actually killed anybody --- should be held so they can't help their military.

It's CLEAR that the biggest mistake the Founding Fathers had was in believing that those who followed them would have even a fleeting grasp of common sense.-=Mike

Henhouse - If the American Justic System is the prize to be defended..as part of our constitution, the world's model of fairness and social enlightenment,

The American justice system is just an artifact, a system to deliver justice to the American people and punish the criminals and enemies that harm the public. The prize to be defended is the person working in the next WTC, the child at the next Beslan the Islamoids target.

Henhouse - The proponent of rule of law and the constitution that we and all Americans would die to defend...

Aside from the joke of a Lefty like you ever trying to defend anything but your precious ass, the Constitution is simply the operating manual that We the People, not We the People plus illegal immigrants, enemy combatants, and terrorists are covered by.

Henhouse - that Court System David .. is that the one you fear having anything to do with Guantanamo?

David justly fears the stupidity of treating enemy combatants and terrorists on the same basis that they are simply criminals who Lefties hold get all the advantages of civilian criminal justice system due process - unlike in any other war - plus those enemy killers and terrorists get ADDITIONAL rights no criminal gets because they are due them by Geneva....

In short, enemy lovers & terrorist defenders like Henhouse see the civilian courts as being the most helpful to their Islamoid friends who do a little freedom-fighting and seek justice for the Crusades. Until Lefties work with them and convince Western societies to make all the apologies, concessions the radical Muslims demand that presently they don't have and are enraged and offended of the "injustice" of it all.

Henhouse - Do you hate America so much that you no longer trust it? Is that your issue? You hate America?

No, most real Americans hate seditious enemy lovers like you. And CAIR and ACLU types. And with major war looming, it is comforting to see the Left so deep in hatred of Bush that they are in near open sympathy with radical Islam. Waaaaaaay out on a limb, setting yourselves up to have to face a loyalty to nation moment. Where you will have to choose sides between the West and the Ummah.

Please, try them in U.S. courts? They were seized without warrants, on the battlefield, interrogated without attorneys present, and they will no doubt raise a defense of necessity or self defense if a case somehow gets into court on the merits. Or are we all comfortable with the courts just sort of making up some new hybrid of criminal procedure and con law as we go along?

Moreover, we can't repatriate them under the Convention Against Torture, as enacted in US Code, to any countries where there is a likelihood of them being tortured. You think Jordan, Yemen, Pakistan, Saudi, or Pakistan, would pose a likelihood of torturing returned AQ fighters, who condemn those "apostate" regimes?

The normal remedy under international law is to repatriate them to a neutral third party country. You think Sweden or Switzerland are willing to take them? How about China? (Whoops, likelihood of torture. What am I thinkin?)

No, the only possible remedy is to give them at least asylum, and maybe permanent resident alien status in the U.S. I am all in favor of this, as long as we put them in Michael Ratner's building in New York, near Nancy Pelosi's townhouse in D.C., and wherever else there are people working hard to hamstring our continued detention of these men, who a psychiatrist who treated them and who was otherwise skeptical of the wars in Afghanistan and Iraq characterized as a bunch of dangerous psychopaths.

If they are harmless, mostly poor innocent shepherds swept up by the big bad U.S. government, what possible objection could anybody have to them living in the neighborhood? Really. I mean that. All snark aside, if they are innocent, and not incredibly dangerous as the U.S. Government contends, what would be wrong with granting them at least some probationary U.S. immigration status, as apology for how badly we have treated them?

If you think they should be let go, but disagree with this strategy, please explain how your positions are somehow consistent.

Reasonable people throughout history realized that POW's did not warrant any protections as they are only being held until hostilities end.

Actually, holding POWs until the end of hostilities is a fairly recent phenomenon. Historically, soldiers captured in war were generally sold into slavery, ransomed back, or exchanged. Even as late as the U.S. Civil War, the standard early in the war was prisoner exchange. That stopped mid-war and led to the privations of Andersonville and other POW camps (for which the commandant was tried and executed for war crimes).

Al Maviva - Great post! I sort of want any terrorist to be released to be released with the names of all those that worked hard to secure their freedom on the public record. Just so we know if and when the Islamoid goes back to killing Americans as all have said is their religious obligation -- just who else is culpable for what the freed Jihadi did.

I also do so much crave the likes of the ACLU, Russ "bleeding heart" Feingold, "opportunistic" Chuck Schumer, Kenneth Roth, Pelosi, Kerry taking in those "persecuted Shepards and innocent freeddom fighters into their homes or 100% "Blue" democratic districts. Or maybe a dozen or so on each elite college campus in the USA...

*****************************Freder - So, who exactly don't you hate? You don't like Jews, blacks, illegal immigrants, or Europeans. The world of true Cedarford-approved people must be a truly select group indeed.

Freder makes two classic mistakes of Lefties in the grip of identity politics.

First, he assumes that criticism of any in a group, is criticism of ALL with that identity. To an indoctrinated idiot like Freder, you say "I think radical Islamists are a deadly threat we have to wipe out" - but he "hears" that as "I hate all Muslims and wish to kill them without a fair criminal trial"

And in that Freder also slips loose the second Lefty fallacy - that you cannot disapprove of a group or subgroup or foreign enemy without "hating them!". It's part projection because of their hatred of Bush and for many, the military. They just can't grasp how you can kill an enemy without trial, without ACLU lawyers at least filing motions 1st...on the battlefield and not hate them at all. To them, that and anyone saying any negatives - like about the black underclass in NOLA not acquitting themselves well in Katrina becomes a "hateful thing to say".

Exalted: uh -- you think this group of rabid dogs that we have in our government would let guilty men go?

I know that we have. They were deemed to no longer be a threat and were released. Nothing about them being innocent. You're assuming that the ONLY reason we release POWs is because they are found innocent. Thats a mistake.

Cluster bombs kill a whole lot of innocent people when used in populated areas and keep on killing long after they drop.

Thats true, so Fuel Air bombs or Hellfire's instead. My point stands - if you hamstring the terrorist detainee system, we will decide its better to massacre them on the FEBA instead.

The use of disproportionate force is presumptively illegal.

What a crock. You're saying if I mass my SAWs against the enemy, I'm a war criminal? Perhaps we should detach legal counsel to every Platoon Sgt? Am I required by law to trot out a surrender request before each firefight?

Can't find anything in 3rd or 4th Geneva Convention that forbids me from using disproportionate force to destroy the enemy. But I recall Isreal was accused of this same nonsense when attacking Hezbollah in Lebannon, so I'm sure it must exist.

Little help? Need to know what article, so that when we rebuild Western Civ I can shred it.

What a crock. You're saying if I mass my SAWs against the enemy, I'm a war criminal? Perhaps we should detach legal counsel to every Platoon Sgt? Am I required by law to trot out a surrender request before each firefight?

The use of disproportionate force that raises the risk of civilian casualties is presumptively illegal. Sorry if I was imprecise, I assumed someone of normal intellect could figure out what I meant. Obviously, in a set piece battle, where the risk of collateral damage is minimal, you can release whatever you have in your arsenal (although it is presumptively illegal to use certain classes of weaponry against personnel).

And of course note I said presumptively illegal, not illegal per se. It's kind of like being in a two car accident and you are the person who rear-ends the other driver. It is presumed you are at fault.

Exalted: uh -- you think this group of rabid dogs that we have in our government would let guilty men go?

I know that we have. They were deemed to no longer be a threat and were released. Nothing about them being innocent. You're assuming that the ONLY reason we release POWs is because they are found innocent. Thats a mistake.

Fen, like on everything else, you are wrong. Completely.

Do you have any idea how we acquired these detainees? Do you not know that a significant number were sold to us by Afghan warlords? That they could just be enemies of those warlords, or patsies in the wrong place, at the wrong time? Like the taxi driver who was famously beaten to death in Bagram? Of course you don't, that would require "reading" and "obtaining facts" rather than "wingnut speculating."

Cedarford, I wouldn't describe them as Islamoids as much as violent Islamic extremists. The same reason that I oppose the "don't just do something stand there" coalition, I'm against characterizing this as a problem with Islam per se. There's maybe a billion point one Muslims worldwide. We have political trouble with ten or twenty percent of them, possible or actual violence trouble with maybe one percent of that subset. It's not a great strategy to make out the enemy to seem bigger than he is, or to speak and act in a way that makes otherwise disengaged people think they ought to be in the enemy's camp.

And I'll defer to The Exalted on the character of the detainees - they're just poor shepherds, most of 'em, right Ex? They aren't violent. Bush lied. Warlords broke up their knitting circles and sold them to us. Let 'em go, preferably on in Manhattan. They'll do just fine.

Fen, like on everything else, you are wrong. Completely. Do you have any idea how we acquired these detainees?

Yes, I am aware that some were acquired under suspicious circumstances. I also note that you failed to defend your invalid assertion that 400 were released ONLY because they found innocent. In fact, you don't even try to defend it, you distract with an ad hom instead. Thanks for surrendering the field so disgracefully.

Freder: The use of disproportionate force that raises the risk of civilian casualties is presumptively illegal. Sorry if I was imprecise, I assumed someone of normal intellect could figure out what I meant.

The hypothetical example was mine, not yours, and said nothing about any civilians being in the area. You moved the goalpost by adding them in without telling me. Very much the weasel.

Regardless, Iran is now charging the captured uniformed Brits with espionage. Violation of your precious Geneva Convention. You'll be shouting about it from the rooftops, yes?

and al maviva -- some are "poor shepards," some are dangerous terrorists. that is why they merit habeas corpus to determine their status. shocking, shocking, there might be nuance to engaging in warfare?

Coming soon to a theater near you...the sublime, the rascally rascal, Alberto "They call me Pedro Partner" Gonzales. Under oath! Under pressure! Soon to be under foot! Yes Al's got some talkin' to do and we will bring it to you live, up close, in every sweat dripping, palm whiping detail...Geraldo is just panting as he anticipates the drawn and quartered Big Al begging and whimpering...loosing is mind and his train of thought..."I was just defending kids"....

A trademark film. Brought to you by Texans for keeping Bush in Texas. Produced by Harriet (speak again Beaner and I'll slit your throat) Miers with special effects by Darth Invader, and a truth and fact check squad led by Scooter "Chaingang" Libby.

He's bold. He lies with a straight face. See the torture man spin...April 17 on a C-span near you.